Sometimes all of our thoughts are … misgiven?

“Misgiven”? Like most of the lyrics in “Stairway to Heaven,” “Sometimes all of our thoughts are misgiven” is nonsense. On the other hand, there was nothing misgiven about my determination to surrender to cliche and give the “Stairway” blog post a title from the song, and this seemed as good as any.

Man, that’s scary. The picture of Robert Plant, I mean. But the Ninth Circuit, for a welcome change, not so much.

And here’s what I mean, at the outset, by misgiven. That’s more or less how Mark Jaffe describes, in this short Twitter thread, the key flaw in the theory of the “inverse ratio” in copyright infringement, i.e., the idea that proof of access to a certain work for purposes of showing copies should relate to the proof of “substantial similarity” to prove infringement:

Because the access (or actual copying) question is a completely separate and independent question than the substantial similarity required to prove copyright infringement.

— Mark Jaffe, Bay Area by way of Brooklyn. (@MarkJKings) March 10, 2020

Proving access has long been key to proving two works are “substantially similar,” but in its new ruling, the Ninth Circuit overturned a long-standing precedent in this realm known as the “inverse ratio rule.” (The inverse ratio rule holds that if one party can prove a high degree of access to a certain work, the less substantial the similarities need to be in order to prove infringement.)

In his appeal, Skidmore objected to the lower court judge’s decision not to instruct the jury on the inverse ratio rule. He believed this would’ve helped his case because not only did Led Zeppelin and Spirit tour together in the late Sixties, but also because Page admitted during the trial that he had a copy of the Spirit album with “Taurus” in his collection (though he denied “any knowledge” of the song). If Skidmore could prove this much access, the similarities between the two songs wouldn’t need to be overwhelming in order to prove infringement (this would’ve been doubly helpful because the copyright complaint centered around just a few measures of music at the starts of “Stairway” and “Taurus”).

While the Ninth Circuit has used the inverse ratio rule in the past, other appeals courts have rejected it, and in his decision, Judge R. Gary Klausner said that because the inverse ratio rule “defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.” Klausner added that the application of the rule has been inconsistent in the Ninth Circuit, and notably mentioned the “Blurred Lines” case, where it was initially touted as “binding precedent,” before all mention of it was later removed from an amended opinion.

Stairway to millions

What a mess! But why — didn’t “Blurred Lines” clarify everything? Hardly, as everyone knows, though most of us can’t even ponder a prescription thick enough to focus on why. Luckily, Rick Sanders explains:

Under the “correct” Laureyssens view, all the proof of access in the world shouldn’t have made that much of a difference. All it does is reduce the amount of probative similarity that would need to be shown to prove copying. But, once copying is proven, that’s the end of that element. It’s time to turn to substantial similarity, which is a completely separate inquiry with nothing to do with access.

But under the Ninth Circuit’s test, this proof of access took on outsized—perhaps even overwhelming—importance. The “inverse ratio” rule isn’t limited to the element of copying (as it should) but is applied to similarity. Remember that the extrinsic test (the equivalent of probative similarity) and the intrinsic test (the equivalent of substantial similarity) are lumped together as “substantial similarity.” Thus, strong proof of access means that not much proof of (real) substantial similarity is needed. Remember, too, that (real) substantial similarity is where we start to filter out (or otherwise deal with) non-protectable elements. If this is your legal framework, and you have Robin Thicke telling the world how much he wanted to make a song like “Blurred Lines,” then the jury’s verdict is justifiable.

As the Ninth Circuit put it, “In addition, the verdict was not against the clear weight of the evidence because there was not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs.” (Emphasis added.)

In other words, the proof of access (and influence) was so strong that there needed to be no similarity at all to overturn the jury’s verdict. (Update 7-16-18: In the amended opinion, the Ninth Circuit ditched all mention of the “inverse-ratio rule”!)

I’m pleased to report that, far from taking this opportunity to further screw up copyright law . . . the panel of judges is attempting to improve copyright law by replacing the Ninth Circuit’s (very bad) framework for copyright infringement with a much better one. Indeed, the “Stairway to Heaven” opinion may be seen as a rebuke to the “Blurred Lines” opinion. The pity is that Led Zeppelin must bear this burden by having to do the trial all over again.

But if there is a “villain” here, it’s not “copyright trolls” (a term Caramanica misuses, IMHO) or even greed. It’s the term of copyright. The U.S. copyright system has always assumed a relatively short term—14 years at one point, eventually to two 28-year terms. Once a work’s copyright had expired, you could reference it, even copy it, all you wanted. But now copyright lasts about two lifetimes (by design), but the scope of copyright hasn’t shrunk to compensate. That puts pressure on other aspects of copyright law to clear out space for borrowing.

The copyright in “Gotta Give It Up” was just as broad and as strong in 2013 as it was in 1977. At some point, even Robin Thicke should be allowed to make a song with the same groove.

Another villain might be the cult of originality that Caramanica criticizes (rightly in my view). Copyright infringers are often called “thieves,” and sometimes they really do take money from creators. All the same, there was nothing shameful about Sam Smith and his fellow songwriters giving songwriting credit to Tom Petty and Jeff Lynne. Smith et al. clearly borrowed a nontrivial amount of a protectable expression, but they turned it into their own. It’s a good tune. Why shouldn’t it be used again creatively? Just give the original creators their due. But the cult of authenticity, which overlaps significantly with the cult of originality, won’t allow that. Well, that and the time and bother of clearing copyrights and the risk that the rightsholder might not play ball.

Another one is that copyright law is impossible to make sense of these days. Consider damages. In 2016, I wrote this after the Supreme Court ruled in Kirtsaeng:

It may [now] very well be — it will certainly be — more difficult for litigants, their clients, judges, clerks, litigation funding outfits, shareholders, expert witnesses, legal journalists, bloggers, astrologers and everyone on Twitter to predict whether fees will be awarded in a particular case.

[B]ad damages awards have pernicious knock-on effects. They distort the market for not only the settlement of disputed claims, naturally, but also license royalties, which are at least influenced by the prospect of big damage awards. They distort the market for insurance. They also distort justice. Just the thought of huge damage awards can and will cause innocent parties to settle, just to be free of the threat. At the same time, they encourage weak lawsuits because the upside starts to make even low-chance suits look financially viable (which also makes those suits harder to settle). Their effect on settlement is to raise the stakes. This will cause some parties to capitulate (and pay more than they should), but others will see the suit as an existential threat that they have to win.

For whatever reason, American juries are just very, very generous. This can seem paradoxical. On the one hand, we respect and admire large corporations as important components of our economy. We hope they bring employment to ourselves or our neighbors—e.g., please, Amazon, come to our town and employ us! On the other hand, juries eviscerate large corporations almost every chance they get. My own thinking is that we are grateful for what we get, but we think we might deserve more. So, if we sometimes feel like we’re the dogs under the table happily eating scraps, we’re not above giving the table leg a little push to knock a few more scraps onto the floor. Others, I’m sure, have their own theories.

In light of the decision in the Thomas-Rasset case, which I first rounded up in part 1 of this first-ever two-part LIKELIHOOD OF CONFUSION® odyssey, now I ask: How does a jury of supposedly ordinary and sensible people becomes twelve angry persons and so profoundly abandon common sense in IP cases (even if it the whole thing looks really hilarious to some folks)? How do they allow themselves to buy into these never-never-land valuations of damages, whether statutory or otherwise? . . .

[In a case I tried, a jury awarded an] astounding $3 million trademark infringement award, plus a $3 million for “tortious interference with contract,” numbers that everyone in the room knew bore no relation whatsoever to any integers placed into evidence. That money judgment was ultimately vacated (though, to be clear, not on substantive legal grounds), but the damage was done. More than one business and more than one family was ruined by the law despite having done nothing that violated it.

What was shocking to me was not the arbitrariness of the number; that was actually consistent with the arbitrariness of the legal guidance given the jury. No, I was astonished that a panel of working people with homes, mortgages, dental bills and in some cases their own small businesses would, in the absence of any evidence of actual losses arising from trademark infringement, take a seven-figure damages number out of the fantasies of the worst IP-abusing plaintiffs and actually vote for such an award.

Though the jurors had no way of knowing that the very same acts they had punished so profoundly had been ruled permissible as a legal matter in another federal court a few months earlier, they cannot have been but fully aware that they were ruining one business and two families.

We did not get to speak to this jury, and frankly I had no interest in it. This was the first jury I had ever meaningfully “lost” and, in light of my clients’ imminent ruin, I had no interest in chatting its members up. I am always prepared to lose on the facts, because that is the nature of the endeavor. But I could not forgive their damage awards, which were utterly unjustifiable. The fact that, in other cases, a range for statutory damages is also given doesn’t make any old number within that range justifiable, either, if justice means anything.

This is a problem. We don’t have a coherent theory of copyright damages; we don’t have a coherent policy of copyright damages; unsurprisingly, we don’t know what to tell juries about copyright damages; and for some reason, juries get incredibly … misgiven when it comes to copyright damages. And — Rick again — notwithstanding dreams of copyright small-claims tribunals and the like, copyright juries aren’t going anywhere.

The theories of liability, the reverse-ratio rule, all the things are.. interesting. We have to work them out. They are complicated. And, as Rick knows, “the crazy’s always been there.” And the crazy has always introduced great uncertainty into this copyright infringement business — but the crazy involving juries throwing around money with no serious consideration about where value comes from is much more troubling.

Jurors seem to believe in a “lottery” theory of value. There is little attention paid at trial, in jury instructions or, it seems, in the jury room to fleshing out why things work, i.e., why they make money. Like a lot of people, juries are easily convinced that think “holding” — or, “owning” — copyrights and trademarks are little different from winning the lottery when, for some reason, a name or meme or idea or slogan somehow “gets famous.”

This goes to what Rick calls the “cult of authenticity” and a lack of appreciation for what makes a good idea, a good hook, a good creative moment into good money. As he explains (emphasis added):

I[In] the “Dark Horse” case, the jury decided that 22.5% of the song’s profits were attributable to the infringement. From one perspective, that seems impossible because it requires us to conclude that everything else—the rest of the song’s elements, the various performances, the engineering & production, the star power, the labels’ marketing machine—amounts to only 81.8% of the song’s profits. Get rid of Katy Perry (i.e., replace her with a replacement-level talent), and what do you have? Get rid of the whole rap in the middle, and what do you have? Get rid of radio play, Spotify playlists, Katy Perry’s promotion of the song, and how much money do you “Dark Horse” would have made?

If I’m right about the psychology of the American juror, this decision is understandable, though. All those external factors, even including the artistry of the performances, are undeserved, from this way of thinking. The song sold a lot, and its sound recording was of impeccable quality, but only because everyone involved had a lot of money and power. They don’t deserve to profit from it. They already have enough.

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The Title, the Blog and the Blogger

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. I write here about trademark law, copyright law, brands, free speech (mostly as it relates to the Internet) and legal issues related to blogging. That may sound like a lot, but it's just a blog.

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